Citation Nr: 0721518
Decision Date: 07/18/07 Archive Date: 08/02/07
DOCKET NO. 05-29 772 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to an initial compensable disability evaluation
for a recurring ingrown toenail of the left great toe.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
S. R. Murphy, Law Clerk
INTRODUCTION
The veteran had periods of active military service from
December 1989 to March 1997and from January 1999 to February
2000.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an October 2003 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon.
FINDINGS OF FACT
1. The veteran has been notified of the evidence necessary to
substantiate his claim, and all relevant evidence necessary
for an equitable disposition of this appeal has been
obtained.
2. The competent medical evidence of record does not show
that the veteran's service connected ingrown toenail more
closely approximates a moderate foot injury.
CONCLUSION OF LAW
The schedular criteria for an initial compensable evaluation
for service-connected ingrown toenail have not been met or
approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7,
4.71a, Diagnostic Code 5299-5284 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the provisions of the
VCAA. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002 & Supp. 2007). Regulations
implementing the VCAA have been enacted. 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2006). VA has a duty to notify
the claimant of any information and evidence needed to
substantiate and complete a claim. This includes
notification as to what information and evidence VA will seek
to provide and what evidence the claimant is to provide. 38
U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16
Vet. App. 183 (2002). Further, VA must ask the claimant to
provide any evidence in his or her possession that pertains
to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2006); 38
C.F.R. § 3.159 (2006).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This
case held that the VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements are: (1)
Veteran's status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) the degree of disability; and (5) effective date of the
disability. The Court held that upon receipt of a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) require VA to review the information and evidence
presented with the claim and to provide the claimant with
notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Additionally,
this notice must indicate that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded.
While VA failed to provide notice of the type of evidence
necessary to establish a disability rating or effective date
for the claim for the disability on appeal prior to the
denial of the claim, such failure is harmless because, as to
the disability rating, the veteran was sent correspondence in
May 2003 that informed him of what the evidence had to show
to establish entitlement to an increased rating and, as to
the effective date issue, because the claim is being denied,
the effective date to be assigned is moot. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
The Board finds that all necessary assistance has also been
provided to the veteran. Service medical records and post
service medical records have been associated with the claims
file.
In view of the foregoing, the Board finds VA has fulfilled
its duties to notify and assist the veteran in the claim
under consideration. Adjudication of the claim at this
juncture, without directing or accomplishing any additional
notification and/or development action, poses no risk of
prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384,
394 (1993).
Pertinent Legal Criteria
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R.
§ 4.1 (2006). Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria for that rating. Otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7 (2006).
Words such as "moderate," "moderately severe" and "severe"
are not defined in the Rating Schedule. Rather than applying
a mechanical formula, the Board must evaluate all of the
evidence to the end that its decisions are "equitable and
just." 38 C.F.R. 4.6. Use of terminology such as "severe" by
VA examiners and others, although evidence to be considered
by the Board, is not dispositive of an issue. All evidence
must be evaluated in arriving at a decision regarding an
increased rating. 38 C.F.R. §§ 4.2, 4.6.
The assignment of a particular diagnostic code is "completely
dependent on the facts of a particular case." Butts v.
Brown, 5 Vet. App. 532, 538 (1993). When an unlisted
disease, injury, or residual condition is encountered
requiring rating by analogy, the diagnostic code number will
be "built-up" as follows: The first 2 digits will be selected
from that part of the schedule most closely identifying the
part, or system, of the body involved; the last 2 digits will
be "99" for all unlisted conditions. 38 C.F.R. § 4.27
(2006).
The diagnostic code after the hyphen identifies the
diagnostic code the RO used as analogous to evaluate the
veteran's service-connected condition, in this case
Diagnostic Code 5284 for other foot injuries. Diagnostic Code
5284 provides evaluations of 10, 20, and 30 percent for
moderate, moderately severe, and severe foot injuries,
respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5284
(2006).
Analysis
Service connection for the ingrown toenail was generated by a
rating decision dated October 2003; it was evaluated as
noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5299-
5284. The Board notes that Diagnostic Code 5299 is used to
identify musculoskeletal system disabilities that are not
specifically listed in the Rating Schedule, but are rated by
analogy to similar disabilities under the Rating Schedule.
38 C.F.R. §§ 4.20, 4.27 (2006). Diagnostic Code 5284
outlines the rating criteria for rating foot injuries. 38
C.F.R. § 4.71a, Diagnostic Code 5284 (2006).
In order for the veteran to receive the next higher 10
percent disability rating under Diagnostic Code 5284, his
service-connected ingrown toenail disability should more
closely approximate a moderate foot injury. The medical
evidence, however, does not depict such a disability picture.
A March 2002 private medical examination report reveals that
the veteran exhibited "swelling and thickening of the left
first toenail." At that time the physician did not indicate
that the veteran was experiencing any pain or any loss in
range of motion in the toe or foot. In a 2003 VA examination
the physician noted there was no indication of infection,
deformity, tenderness, or decreased range of motion in the
toe or foot; thus there is insufficient objective medical
evidence to warrant a compensable rating under Diagnostic
Code 5284. In addition, there has been no other pertinent
medical evidence received since the claim was filed which
elaborates on or supports the veteran's claim.
Furthermore, the medical evidence does not show that the
veteran has malunion or nonunion of the tarsal or metarsal
bones, hallux rigidus, metatarsalgia, acquired claw foot, or
acquired flatfoot as a result of his service-connected right
foot disability. Thus, consideration under those diagnostic
codes pertaining to the foot is not appropriate in this case.
38 C.F.R. §§ 4.71a, Diagnostic Codes 5276-5284 (2006).
Based on the foregoing, the Board finds that the
preponderance of the evidence weighs against the assignment
of a compensable rating for the veteran's service-connected
ingrown toenail disability on a schedular basis.
Nevertheless, the veteran maintains the ability to submit
additional competent medical evidence indicating the presence
of symptoms that could lead to a compensable rating.
To the extent that his toe disability affects his employment,
such has been contemplated in the assignment of the current
noncompensable evaluation. The evidence does not reflect
that the disability at issue has caused marked interference
with employment (i.e., beyond that already contemplated in
the assigned evaluation), or necessitated any frequent
periods of hospitalization, such that application of the
regular schedular standards is rendered impracticable. Thus,
referral to the RO for consideration of the assignment of an
extra-schedular evaluation under 38 C.F.R. § 3.321 (2006) is
not warranted.
ORDER
Entitlement to a compensable evaluation for left great toe
recurring ingrown toenail is denied.
____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs